Citation Nr: 1328746 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-00 346A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran appellant served on active duty from March 1965 to January 1969, including service in the Republic of Vietnam. Thereafter, he was a member of the Air Force Reserve from January 1969 to March 1971. This was followed by his re-entry into active duty; he served on active duty from May 1971 until August 1993. The Veterans decorations include the Distinguished Flying Cross and Air Medals. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision issued by the above Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board and was most recently remanded in November 2012. In June 2013 the Board requested an opinion from a medical expert at the Veterans Health Administration (VHA). In July 2013 a medical expert opinion was received and associated with the claims file. The Veteran and his representative were provided a copy of the medical opinion. The issue of entitlement to a disability evaluation in excess of the currently assigned 20 percent rating for the appellant's service-connected diabetes mellitus disability has been raised by the record, but that issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that increased rating issue, and it is referred to the AOJ for appropriate action. FINDING OF FACT The competent and probative medical evidence of record establishes that the Veteran's hypertension is related to the service-connected diabetes mellitus disability. CONCLUSION OF LAW A hypertension disability is proximately due to the Veteran's service-connected diabetes mellitus disability. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Given the fully favorable decision, discussed below, the Board finds that any issue with regard to the duties to notify and assist is moot or represents harmless error. The Veteran contends that his current hypertension disorder is due to his service-connected diabetes mellitus disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). To establish entitlement to service connection on a secondary basis, there must be competent medical evidence of record establishing that a current disability is proximately due to or the result of a service-connected disability. See Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). During the course of this appeal, VA amended 38 C.F.R. § 3.310 effective October 10, 2006). See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). The amended 38 C.F.R. § 3.310 (b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the Veteran review under both the old and new versions. See VAOPGCPREC 7-2003 (Nov. 19, 2003). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Service treatment records do not reveal a discussion of hypertension. There are also no treatment records indicating that the Veteran had hypertension or any high blood pressure readings within one year after service. The Veteran was afforded a VA medical examination in August 2009. The Veteran was diagnosed with essential hypertension, mild, well-controlled. A February 2010 addendum to the VA medical examination provided the opinion that the Veteran's hypertension was not related to or aggravated by diabetes mellitus since there was no renal involvement or diabetes mellitus. The Veteran's treating physicians, Dr. D.S. and Dr. R.B. submitted letters in October 2010. Dr. D.S. reported that the Veteran's hypertension was more difficult to control and worsened by the Veteran's diabetes mellitus. Dr. R.B. stated "that it is not unlikely that his hypertension is, if not causally related to his diabetes it is, at least, exacerbated by it." In November 2010 the Veteran's claims file was reviewed by a VA medical examiner. The examiner noted that review of the service treatment records revealed the Veteran's blood pressure readings to be normal. The Veteran first had a reading at the upper limits of normal in November 1998 and a diagnosis of hypertension was recorded in January 2003. Review confirmed a diagnosis of essential hypertension. The reviewer also stated that the Veteran did not have a diagnosis of diabetes mellitus until March 2003, and that this occurred after a diagnosis of hypertension was confirmed. The examiner stated that as the: diabetes mellitus was diagnosed after, albeit, three months after initial treatment for hypertension, and since there is no evidence of worsening of the HTN, then it is as least as likely as not the hypertension has been aggravated by the diabetes mellitus and as opposed to the appellant's documented obesity which is considered to contribute to the HTN. The physician stated that it was not possible to state in terms of a percentage how the diabetes mellitus contributed to the natural progression of the hypertension as opposed to other possible contributing factors. The Veteran had experienced a weight gain from 188 pounds in 1993 to 220 pounds in 2002, with a diagnosis of obesity in 2002 based on his body mass index (BMI) of 34.5 at that time. The physician noted that obesity is a recognized contributing factor for hypertension. In a March 2012 addendum opinion, the reviewing examiner stated that the Veteran's claimed hypertension was less likely than not incurred in service. The reviewer stated that the Veteran had essential hypertension that was diagnosed in 2003, and that the Veteran's blood pressure readings since his diagnosis confirmed that his hypertension had been well-controlled with no evidence of cardiac pathology. The examiner further stated that no evidence of cardiac pathology was shown at the time of the Veteran's service separation as confirmed by electrocardiogram. The examiner stated that the Veteran's diabetes had been diagnosed in 2006, and that he had no complications. The reviewing examiner concluded that the Veteran's hypertension was less likely than not caused by the service-connected diabetes or by the treatment of the Veteran's diabetes. In April 2013 the Veteran was afforded a VA medical examination. The Veteran was diagnosed with hypertension. The examiner further provided that the only cardiac pathology with which the Veteran was diagnosed was the hypertension in 2003. It was opined that the Veteran's diabetes mellitus type did not cause or aggravate the Veteran's hypertension. In support, it was provided that the mechanism by which diabetes can have an effect on hypertension is via the diabetic complication of renal dysfunction. Due to the Veteran's lack of any renal dysfunction, the examiner determined that no relationship existed between hypertension and diabetes. In July 2013 a VA medical expert provided an opinion regarding the etiology of the Veteran's hypertension. The expert noted that hypertension was not present at the time of the Veteran's discharge from service and only developed many years later. In addition, there was development of diabetic nephropathy, which could provide and easily identifiable link between the Veteran's service-connected diabetes mellitus and the subsequent development of hypertension. The expert noted that this case fundamentally addresses the question as to whether the development of diabetes mellitus at one point in time can influence and contribute at a later time to the development of hypertension through mechanisms which do not involve abnormal kidney function. The expert stated that diabetes mellitus is fundamentally associated with insulin signaling and insulin resistance. With respect to control of blood glucose levels, this results in the inability of the body to protect normally against elevated blood glucose levels, thereby resulting in elevated blood glucose levels, the hallmark of diabetes mellitus. The expert noted that this was not the only abnormality that develops as a result of diabetes mellitus. Diabetes mellitus also causes a number of additional abnormalities, many of which affect the cardiovascular system. These were reported to include insulin-induced sodium chloride retention, causing the development of volume-dependent hypertension, marked decreases in nitric oxide (a potent vasodilator which decreases blood pressure) production and vascular sensitivity, increased vascular inflammation, increased expression of a number of cytokines which have direct effects on the vasculature to cause increased vasoreactivity and increase blood pressure, and increased formation of advanced glycation end products which directly affect blood vessels and can lead to hypertension and impaired endothelial function. The expert explained that each of these abnormalities contributes to the development of hypertension as a consequence of the insulin resistance which occurs as a component of diabetes mellitus. Other factors include increased generation of reactive oxygen species, which directly cause vasoconstriction and increased blood pressure, alteration in intracellular signaling molecules, such as nuclear factor kappa B. The expert reported that all of these factors can contribute to both the development and the worsening of hypertension. The expert noted that hypertension resulting from insulin resistance and diabetes is indistinguishable from essential hypertension. Therefore, the expert did not believe it was possible to state definitively that the Veteran had essential hypertension unrelated to diabetes mellitus. The expert found that scientific literature supported diabetes mellitus-induced insulin resistance as a key contributing factor in the development and/or worsening of hypertension. The expert cited a number of publications supporting this conclusion. The expert stated that it is at least as likely as not that the Veteran's hypertension was either proximately caused by or, more likely, aggravated by his service-connected diabetes mellitus. The expert noted that the VA opinions reviewed focused on whether hypertension was present at the time of diagnosis of diabetes mellitus and whether there was evidence of diabetes-induced kidney disease. The expert agreed with the evaluations of the previous reviewers that neither of these conditions existed. However, he did not believe that these conditions were necessary for concluding that diabetes-induced insulin resistance either caused or aggravated this Veteran's hypertension. Rather the expert noted that the variety of mechanisms discussed which result from the Veteran's service-connected diabetes mellitus are at least as likely as not to have either proximately caused or aggravated his hypertension. Entitlement to service connection for hypertension is warranted. The Veteran has been diagnosed with hypertension and is currently in receipt of service-connected benefits for diabetes mellitus. Although VA medical examiners have rendered the opinion that the Veteran's hypertension is not due to the Veteran's service-connected diabetes mellitus based upon the timing of the development of hypertension and a lack of kidney symptomology, after review by a VA medical expert, the opinion was rendered that the Veteran's hypertension is at least as likely as not proximately due to or aggravated by the Veteran's diabetes mellitus. The VA medical expert provided thorough rationale for the opinion and commented upon the opinions of the VA examiners. As the evidence is at least in equipoise, entitlement to service connection for hypertension is granted. ORDER Service connection for hypertension is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs